Supreme Court Judgments

Supreme Court of Canada

Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393

Date: 1973-12-21

Brenda Elaine Moran in her own right as widow of the late William Franklin Moran, deceased, and Robert William Moran and Todd Michael Moran by their next friend Brenda Elaine Moran (Plaintiffs) Appellants;

and

Pyle National (Canada) Ltd. (Defendant) Respondent.

1973: June 7, 8; 1973: December 21.

Present: Martland, Judson, Spence, Laskin and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Courts—Plaintiff’s husband fatally injured in Saskatchewan while removing spent bulb—Bulb manufactured by defendant in Ontario—Allegedly careless manufacture—Saskatchewan Courts entitled to entertain action.

An electrician was fatally injured in Saskatchewan while removing a spent light bulb manufactured by the respondent company. The latter did not carry on business in Saskatchewan and had no property or assets in that province: all of the company’s manufacturing and assembling operations took place in Ontario with components being manufactured either in Ontario or in the United States. The company sold all of its products to distributors and none directly to consumers. It had no salesmen or agents within Saskatchewan.

The appellants, the wife and children of the deceased, brought an action against the respondent under The Fatal Accidents Act, R.S.S. 1965, c. 109. They claimed that the respondent was negligent in the manufacture and construction of the bulb and negligent in failing to provide an adequate system of safety checks to prevent its product containing faulty wiring from leaving its plant, or from being distributed or sold or used.

On a chambers motion, it was held, assuming the company to be negligent as alleged, such negligence occurred in Ontario and the tort was committed outside Saskatchewan. The chambers judge, however, granted the plaintiffs special leave under s. 54 of The Queen’s Bench Act, R.S.S. 1965, c. 73, to commence an action in Saskatchewan and made an order allowing service of the proposed statement of claim and

[Page 394]

writ of summons in Ontario. The company appealed successfully and the order of the chambers judge was set aside. With leave, the appellants appealed from the judgment of the Court of Appeal to this Court.

Held: The appeal should be allowed.

Where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. Accordingly, the Courts of Saskatchewan had jurisdiction to entertain the present action.

George Monro, Ltd. v. American Cyanamid and Chemical Corp., [1944] 1 K.B. 432; Watson v. Winget, Ltd. [1960] S.L.T. 321; Abbott-Smith v. Governors of University of Toronto (1964), 45 D.L.R. (2d) 672; Oligny v. Beauchemin et al. (1895), 16 P.R. (Ont.) 508; Anderson v. Nobels Explosive Co. (1906), 12 O.L.R. 644; Donoghue v. Stevenson, [1932] A.C. 562; Ratcliffe v. Evans, [1892] 2 Q.B. 524; Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The “Wagon Mound”), [1961] A.C. 388; Grant v. Australian Knitting Mills Ltd., [1936] A.C. 85; Distillers Co. (Biochemicals) Ltd. v. Thompson, [1971] A.C. 458; Cordova Land Co. Ltd. v. Victor Bros. Inc., [1966] 1 W.L.R. 793; Jackson v. Spittall (1870), L.R. 5 C.P. 542, referred to.

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], allowing an appeal from a judgment of Disbery J. Appeal allowed.

M.C. Shumiatcher, Q.C., and R.D. McCrank, for the plaintiffs, appellants.

Miss Marjorie A. Gerwing, for the defendant, respondent.

The judgment of the Court was delivered by

DICKSON J.—This appeal from the Court of Appeal for Saskatchewan presents in a jurisdic-

[Page 395]

tional context the question of the place of commission of a tort.

According to the statement of claim, the averments of which I accept as true solely for the purpose of testing jurisdiction, William Franklin Moran, an electrician employed by International Minerals and Chemical Corporation (Canada) Ltd. was fatally injured at or near the Town of Esterhazy in the Province of Saskatchewan while removing a spent light bulb manufactured by the defendant-respondent Pyle National (Canada) Ltd. (Pyle). At the time of the accident Mr. Moran was standing on a ladder propped against a steel “I” beam. While unscrewing the bulb Mr. Moran touched the metal base and was electrocuted. The plaintiffs‑appellants, who are the widow and children of the deceased, claim that Pyle was negligent in the manufacture and construction of the bulb and negligent in failing to provide an adequate system of safety checks to prevent its product containing faulty wiring from leaving its plant, or from being distributed or sold or used.

Pyle does not carry on business in the Province of Saskatchewan and has no property or assets in Saskatchewan: all of the company’s manufacturing and assembling operations take place in the Province of Ontario with components being manufactured either in Ontario or in the United States. Pyle sells all of its products to distributors and none directly to consumers. The company has no salesmen or agents within Saskatchewan.

Section 54 of The Queen’s Bench Act, R.S.S. 1965, c. 73, s. 54, provides:

Notwithstanding anything in Section 53, no action shall be brought in Saskatchewan for damages in respect of a tort committed outside the province except by special leave of the Court or a judge.

On a chambers motion, Disbery J. in a written decision held, assuming Pyle to be negligent as alleged, such negligence occurred in Ontario and the tort was committed outside Saskatchewan.

[Page 396]

Disbery J., however, granted the plaintiffs special leave under s. 54 to commence an action in Saskatchewan and made an order allowing service of the proposed statement of claim and writ of summons in the Province of Ontario. Pyle appealed successfully and the order of Disbery J. was set aside. In the opinion of the Court s. 54 was enacted to enable the Court at its discretion to decline jurisdiction when it could be shown that the action would be more conveniently tried in another forum, and not to confer jurisdiction. In the view which I take of this case, for the reasons which follow, it is unnecessary to consider further s. 54 of The Queen’s Bench Act.

The cause of action herein is founded on The Fatal Accidents Act, R.S.S. 1965, c. 109. Is the fact that the action is brought under The Fatal Accidents Act of Saskatchewan in respect of a death which occurred within the Province of Saskatchewan sufficient of itself to give jurisdiction to the Saskatchewan Courts? I do not think so. Although s. 3(2) of the Act provides that the action shall be brought in the Court of Queen’s Bench, s. 3(1) requires that the wrongful act, neglect or default must be such as, if death had not ensued, would have entitled the person injured to maintain an action. If one attributes to the Legislature of the Province of Saskatchewan the intention to legislate intra-territorially, as one must, then s. 3 should be construed as limited to a wrongful act, neglect or default which is committed in Saskatchewan. It follows that the right of the person injured to maintain an action is ascertainable only when the locus delicti commissi has been determined. The Act itself does not help to determine the locus delicti commissi; it is the locus which determines the application of the Act.

[Page 397]

The task of determining the situs of a tort is of some difficulty. A number of tests which one might apply are to be found in the cases and in the learned journals but none has been free of criticism and I think it fair to say that no clear principle has emerged. The difficulty has not been diminished by the failure in many of the cases to distinguish between jurisdiction and choice-of-law. The rules for determining situs for jurisdictional purposes need not be those which are used to identify the legal system under which the rights and liabilities of the parties fall to be determined.

Traditionally, the view has been held that jurisdiction in a personal action rests upon physical power and the ability of the Court to enforce any judgment it may render. Jurisdiction, therefore, normally depends upon the presence of the defendant within the territorial limits of the Court or upon the voluntary submission of the defendant to the authority of the Court: Sirdar Gurdyal Singh v. Rajah of Faridkote[2]; Lung v. Lee[3]. But to this general rule there are exceptions, one of which is the assertion by the Courts of England and Canada of jurisdiction in respect of torts committed within the territorial limits of the Court. Over a tort committed in the Province of Saskatchewan the Courts of the Province of Saskatchewan have jurisdiction wherever the residence of the defendant may be. Rule 27(1)(e) of the Rules of Practice and Procedure for the Court of Queen’s Bench for Saskatchewan recognizes this and permits service of a writ of summons on a defendant out of the jurisdiction to be effected without order whenever “the action… is founded on a tort committed within the jurisdiction.” The issue, therefore, before us, the sole issue, is whether the tort alleged was committed within the Province of Saskatchewan. If so, Pyle, a federally incorporated Canadian company, not resident in the Province of Saskatchewan, is subject to the jurisdiction of the Courts

[Page 398]

of the Province of Saskatchewan. The allegedly careless (a neutral word which I will use rather than the word “negligent”) manufacture of which appellants complain occurred, it is alleged, in Ontario, while the resultant damage occurred in Saskatchewan. Was the tort committed in the Province of Ontario or in the Province of Saskatchewan?

One theory which has been advanced as a means of ascertaining the situs or locus of a tort is sometimes referred to as the “place of acting” theory, i.e., the place where the original act of the defendant which caused the final damage occurred. The theory has the effect of dividing a tort into its constituent elements, the tort of negligence being divided into (1) a duty of care; (2) breach of that duty, and (3) damage, and each of these metaphysical fragments is given a geographic ascription. The jurisdiction in which the careless act is alleged to have occurred is, however, held to be determinative, to the exclusion of the jurisdiction in which the hurt was suffered. Logically, it would seem that if a tort is to be divided and one part occurs in state A and another in state B, the tort could reasonably for jurisdictional purposes be said to have occurred in both states or, on a more restrictive approach, in neither state. It is difficult to understand how it can properly be said to have occurred only in state A.

The place of acting theory finds support in the case of George Monro, Ltd. v. American Cyanamid & Chemical Corp.[4], in which the plaintiff, sole distributor in the British Isles of defendant’s “de-ratting” product cyanogas, sued defendant, a New York corporation, to recover moneys paid by plaintiff on a judgment obtained by a Shropshire farmer following use of cyano-

[Page 399]

gas. The writ was endorsed “for damages for negligence and breach of contract”. The plaintiff sought to serve notice of the writ out of the jurisdiction under O. XI, r. 1, which allowed such service whenever the action was founded on a tort committed within the jurisdiction. Plaintiff failed to get the order. Scott L.J. found the affidavit filed in support of the application “gravely defective”. Goddard L.J. considered “It would be sufficient to dispose of this appeal to say that the affidavit—does not show that the claim brought against the corporation comes within Or. XI.” du Parcq L.J. agreed “that the affidavit does not show what the alleged negligence is.” These findings on the shortcomings of the affidavit were sufficient to dispose of the motion but the learned justices of appeal went further and expressed some obiter dicta. du Parcq L.J. said, p. 440:

Having been instructed by Mr. Ryder Richardson on the subject, I am willing to infer that the negligence alleged is that the corporation put on the market a dangerous substance with written instructions to use it in a dangerous way. That act of commission was done in America and it is highly artificial to say that the tort was committed within the jurisdiction of the English courts. The principle of the rule is plain. Looking at the substance of the matter without regard to any technical consideration, the question is: Where was the wrongful act, from which the damage flows, in fact done? The question is not where was the damage suffered, even though damage may be of the gist of the action.

Goddard L J. said, p. 439:

Here the alleged tort which was committed was a wrongful act or default. It was the sale of what was said to be a dangerous article without warning as to

[Page 400]

its nature. That act was committed in America, not in this country.

And at p. 440:

Therefore it would be a very strong thing for an English court to exercise jurisdiction over an American in respect of an act committed by him in America, although some damage might be alleged to be suffered in England, when the act in America might not be considered by the courts of that country to be tortious at all.

Scott L.J. said, p. 437:

I express no opinion whether, if an act were committed out of the jurisdiction which did not give rise to a cause of action in tort until something further had happened within the jurisdiction, the resultant damage could properly be regarded as flowing from a tort taking place within the jurisdiction. It is not necessary to decide that question in the present case.

Although the Monro case is frequently cited as authority for the proposition that the place of harm does not determine the situs of a tort, nevertheless it is to be observed that the judgments of the Court, which were unreserved and, to a great extent obiter, did not consider in depth the question of situs. The clarity of the conclusions reached was unfortunately blurred by the imperfections of the affidavit and by the emphasis placed on the discretionary nature of the order. It may also be open to question whether the judgment can properly stand in the face of the characterization of a tort by the House of Lords in Watson v. Winget, Ltd.[5], to which I will later revert. A Canadian case which must be considered is Abbott-Smith v. Governors of University of Toronto[6]. An application for service ex juris rested upon allegations of careless manufacture of Sabin Oral Polio Vaccine by the intended defendant at Toronto, administration of the vaccine to the plaintiff in

[Page 401]

Nova Scotia by persons other than servants or agents of the defendant, from which the plaintiff suffered in Nova Scotia an attack of paralytic polio-myelitis and was permanently disabled. The question posed by Ilsley C.J. who wrote the main judgment was whether careless manufacture outside of Nova Scotia, combined with damage suffered by the plaintiff in Nova Scotia, is a “tort committed or wrong done” within Nova Scotia. The learned Chief Justice referred to several American authorities, including Corpus Juris, vol. 62, p. 1110, note (a):

“(1) The locus delicti, whose law governs, has been held to be the place at which the right of the person injured was invaded, as distinguished, on the one hand, from that at which the conduct in breach of duty took place on the part of the person producing the injury … (2) and, on the other hand, from the place at which the consequent damage, for which recovery was sought, occurred.”

He quoted Cheshire, Private International Law, 6th ed., pp. 294-5:

“It is submitted, therefore, that the locus delicti is the first place where the sequence of events is complete so as to create a cause of action. Or, to repeat the American Restatement: ‘The place of wrong is in the State where the last event necessary to make an actor liable for an alleged tort takes place.’ What that last event is must be decided by the lex fori.

“If this view is correct, it conflicts with those expressed by the two Lords Justices in the Monro Case.”

and

“…no act or default is tortious until all the things necessary to give the plaintiff a cause of action have occurred. If of three facts necessary to give a cause of action only two have occurred, there is a tort in embryo, but not a complete tort. The third fact has still to occur, and it would seem that the place in which its occurrence completes the tort constitutes the locus delicti. By reason of something that has

[Page 402]

happened in this place it is possible to say for the first time that a tort has been committed.”

and “‘A tort must be committed before it can be said where it was committed.’” and from Dicey’s Conflict of Laws, 6th ed., p. 804:

“There is some difficulty in holding that a tort is committed in New York, when there is no possible liability in tort until injury is suffered in England.”

but he did not choose to follow any of these authorities. He observed that, despite certain remarks of Goddard L.J. in the Monro case, there is no cause of action for negligence unless there is (1) a duty of care; (2) a breach of that duty, and (3) damage, and conceded “It may be that the tort of negligence is not committed until the damage is sustained”, but, notwithstanding, concluded that:

…this does not in my opinion necessarily mean that for the purposes of Order XI the tort should be regarded as having been committed at the place where the damage was sustained.

The learned Chief Justice rested his judgment on the Monro case and upon several early Canadian authorities. The earliest is Oligny v. Beauchemin et al.[7], in which Boyd C., p. 511, held that:

Proof of some damage in Ontario, which is no doubt a continuation of the original tort committed in Quebec, does not appear sufficient to attract to this Province the whole cause of action.

Chancellor Boyd, in this passage, would seem to suggest that before a tort can be said to be committed in a province all of its constituent

[Page 403]

elements must be found within the province, a concept which has been generally rejected in later authorities. He would also seem to characterize the “damage” as merely a “continuation of” and not part and parcel of, integral to, and sine qua non of “the original tort committed in Quebec”. The next case upon which Ilsley C.J. relied was Anderson v. Nobels Explosive Co.[8]. The claim here was against defendants, manufacturers of explosives, for negligence in allowing a fuse, which had been purchased by the plaintiff’s employers, and which injured the plaintiff at a place in Ontario, to be manufactured and sold in a defective condition, the manner in which the fuse reached the plaintiff’s employers not being alleged or suggested. The facts of the case are much like those of the case at bar, and because the case was followed in other cases which strongly influenced the judgment of Ilsley C.J., Beck v. Willard Chocolate Co. Ltd.[9], and Paul v. Chandler & Fisher Ltd.[10], it would be well to quote at some length from what was said by Anglin J., as he then was, delivering the judgment of the Divisional Court composed of Mulock C.J., Anglin and Clute JJ., pp. 650-1:

…I find myself quite unable to follow Mr. Phelan’s argument that the tort which gave rise to that cause of action was “committed” within Ontario. The charge preferred against the defendants is that they were “negligent in allowing the fuse (which injured the plaintiff) to be manufactured and sold in a defective condition.” How this fuse reached the employers of the plaintiff is not alleged or suggested. The manufacture and the sale by the defendants, negligence in both of which the plaintiff alleges as the tort or wrong committed by the defendants, must, in the absence of any contrary allegation, be deemed to have taken place in Scotland, where the defendants carry on business. If these alleged negligent acts constitute the wrong done by the defendants, though a result of that wrong—perhaps a more or less direct result—may have been injury sustained by the plaintiff in this

[Page 404]

Province, it seems to me impossible to maintain that such wrong or tort was committed in Ontario or elsewhere than in Scotland. It is true that the invasion of the plaintiff’s right of personal security occurred in this Province, but a wrong or tort comprises also the wrongful act or omission of the alleged tort-feasor. Before it can be said that a tort has been committed in Ontario within the meaning of Rule 162(e) it must be established, I think, that the wrongful act or omission of the tort-feasor which caused the injury to the plaintiff, took place in this Province. That is not, and could not well be, alleged by the present plaintiff, and, if it were, the Court, in the exercise of the discretion which it certainly possesses in regard to the application of the provisions of Rule 162(e), should, in such a case as that now before us, decline to permit service out of the jurisdiction.

If the careless acts of manufacture constitute the wrong done by the defendants to the plaintiff, then Anderson v. Nobels Explosive Co. and those cases which followed it, including the Abbott-Smith case, were correctly decided. For myself, I have great difficulty in believing that a careless act of manufacture is anything more than a careless act of manufacture. A plaintiff does not sue because somebody has manufactured something carelessly. He sues because he has been hurt. The duty owed is a duty not to injure. As Pollock has said, 2nd ed., p. 14:

Our law of torts, with all its irregularities, has for its main purpose nothing else than the development of the precept—alterum non laedere—“Thou shalt do no hurt to thy neighbor.”

—a truth to which Atkin L.J. gave judicial expression in Donoghue v. Stevenson[11]. The same thought is found in Salmond, 15th ed., p. 10: “A tort is a species of civil injury or wrong” and in Fleming, 4th ed., p. 1: “Tort liability …exists primarily to compensate the person injured”.

[Page 405]

If the essence of a tort is the injury or wrong, a paramount factor in determining situs must be the place of the invasion of one’s right to bodily security. In a Donoghue v. Stevenson case, can carelessness in manufacture be separated from resulting injury? The jurisdictional act can well be regarded, in an appropriate case, as the infliction of injury and not the fault in manufacture. Pyle is being sued because Moran suffered harm, not because some unidentified employee of Pyle’s was allegedly careless. As long ago as 1892 Bowen L.J. in Ratcliffe v. Evans[12], at p. 528, said: “… where no actual and positive right (apart from the damage done) has been disturbed, it is the damage done that is the wrong”; and Viscount Simonds in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The “Wagon Mound”)[13], at p. 425, said:

It is, no doubt, proper when considering tortious liability for negligence to analyze its elements to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air.

(Emphasis mine.)

Watson v. Winget, Ltd., supra, was a limitation of actions case arising out of a claim for personal injuries against a manufacturer based on Donoghue v. Stevenson, supra. It fell to the House of Lords to construe the statutory phrase “act, neglect or default giving rise to the action”. The nub of the case and in my opinion the true characterization of the tort of negli-

[Page 406]

gence is to be found, I think, in the speech of Lord Denning, p. 331:

So here the wisdom of the common law lies in this, that it holds the breach of duty to be, not the carelessness in manufacture, not the putting into circulation of a faulty machine, but the wrongful infliction of damage…

Lord Reid in Watson v. Winget, Ltd. quoted what Lord Wright had said in delivering the judgment of a Board of the Privy Council in Grant v. Australian Knitting Mills Ltd.[14], at p. 104:

…the duty cannot at the time of manufacture be other than potential or contingent, and only can become vested by the fact of actual use by a particular person.

There is one other case to which reference should be made, Distillers Co. (Biochemicals) Ltd. v. Thompson[15]. Distillers was a manufacturer of pharmaceuticals in Great Britain. Some of its preparations included thalidomide, a substance which it obtained in bulk from German manufacturers. The finished products were sold in Australia but not by Distillers. The case for the plaintiff child, born without arms and with defective eyesight, was that her mother took the Distillers’ product Distival of which the principal ingredient was thalidomide, during pregnancy, with harmful effect on the foetus of the unborn child. The mother of the plaintiff had purchased the Distival in New South Wales. The question before the Court was whether the cause of action was one which arose within New South Wales. Lord Pearson considered three possible theories, the first—that the “cause of action must be the whole cause of action, so that every part of it, every ingredient of it, must have occurred within the jurisdiction”. This draconian theory was ruled out as “too restrictive for the needs of modern times”. Lord Pearson commented, p. 699:

[Page 407]

The defendant has no major grievance if he is sued in the country where most of the ingredients in the cause of action against him took place. In such a case, if the first theory were accepted, the plaintiff, if lacking time and money for following the defendant to the defendant’s country and suing him there, would be deprived of any remedy.

The second of the three possible theories—“that it is necessary and sufficient that the last ingredient of the cause of action, the event which completes the cause of action and brings it into being, has occurred within the jurisdiction” with its emphasis on “last ingredient”, irrespective of its importance, was also rejected. Lord Pearson said, p. 699:

The last event might happen in a particular case to be the determining factor on its own merits, by reason of its inherent importance, but not because it is the last event.

and

…the search is for the most appropriate court to try the action, and the degree of connection between the cause of action and the country concerned should be the determining factor.

Lord Pearson would seem to be moving toward a form of “real and substantial connection” test not unlike the “substance of the wrongdoing” test which Winn L.J. applied in Cordova Land Co. Ltd. v. Victor Brothers Inc.[16] Consideration of the second theory was concluded with this observation:

The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question: where in substance did this cause of action arise?

As I understand it, their Lordships rejected any mechanical application of the “last event” theory in favour of a more flexible, qualitative and quantitative test. The third theory—“that the act on the part of the defendant which gives the plaintiff his cause of complaint must have occurred within the jurisdiction”—was con-

[Page 408]

sidered by their Lordships to be “inherently reasonable, as the defendant is called on to answer for his wrong in the courts of the country where he did the wrong.” The third theory followed the rule laid down in Jackson v. Spittall[17], but that was a breach of contract case and no difficulty was experienced in determining where the breach occurred. As Lord Pearson said, p. 700:

The Court did not have to consider where the wrongful act should be considered to have taken place in an action for negligence. The defendant does not merely by behaving negligently give the plaintiff any cause for complaint in law. The plaintiff has such a cause for complaint if the defendant’s negligence has caused damage to the plaintiff.

(Emphasis mine.) In the result there was held to be negligence in New South Wales causing injury to the plaintiff in New South Wales. The goods were not defective or incorrectly manufactured, the negligence lay in “failure to give a warning that the goods would be dangerous if taken by an expectant mother in the first three months of pregnancy”. It will be noted that the act, in this case the omission, on the part of the defendant which gave the plaintiff a cause of complaint in law occurred in a jurisdiction in which defendant was neither resident nor carrying on business.

Generally speaking, in determining where a tort has been committed, it is unnecessary, and unwise, to have resort to any arbitrary set of rules. The place of acting and the place of harm theories are too arbitrary and inflexible to be recognized in contemporary jurisprudence. In the Distillers’ case and again in the Cordova case a real and substantial connection test was hinted at. Cheshire, 8th ed., 1970, p. 281, has suggested a test very similar to this; the author says that it would not be inappropriate to regard

[Page 409]

a tort as having occurred in any country substantially affected by the defendant’s activities or its consequences and the law of which is likely to have been in the reasonable contemplation of the parties. Applying this test to a case of careless manufacture, the following rule can be formulated: where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. This rule recognizes the important interest a state has in injuries suffered by persons within its territory. It recognizes that the purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered. By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods. This is particularly true of dangerously defective goods placed in the interprovincial flow of commerce.

In the result, I am of the opinion that the Courts of the Province of Saskatchewan have jurisdiction to entertain the action herein. I would conclude with this caveat. For the purpose of considering the jurisdictional point, it has been assumed, as I have stated, that the facts are as alleged in the statement of claim and it has been assumed that upon those facts the plaintiffs have a good cause of action in law on the principle in Donoghue v. Stevenson. The facts and the law remain to be litigated and

[Page 410]

nothing in this judgment should be taken as an approval of what underlies either assumption.

I would allow the appeal with costs here and in the Court of Appeal for Saskatchewan.

Appeal allowed with costs.

Solicitors for the plaintiffs, appellants: Shumiatcher & Associates, Regina.

Solicitors for the defendant, respondent: MacPherson, Leslie & Tyerman, Regina.